Final Victory Now in Sight: More Good News in the Pete Howe Case

by James Gashel

Martin (Pete) Howe now operates a vending facility at the brand new main post office in Green Bay, Wisconsin, but it took a federal court order to get him there. The court decision (reprinted in in the Braille Monitor of March, 1985) was a ruling of historic importance. It says that blind vendors can sue federal agencies to obtain protective injunctions if their rights under the Randolph-Sheppard Act are being violated.

In the ordinary case arising under the Randolph-Sheppard Act, a blind vendor must attempt to get the state licensing agency to go to bat when there is trouble with a federal installation. But what if the state agency won't go to bat and the trouble continues? That's what happened to Pete Howe when the United States Postal Service attempted to substitute a commercial vendor for Pete's vending machines at the time the post office moved in July of 1984.

The Wisconsin Division of Vocational Rehabilitation (the state licensing agency for blind vendors) was utterly confounded by the circumstances. Defending Pete would mean confronting the United States Government, or at least one of its instrumentalities, the United States Postal Service. There would be U.S. attorneys to face in federal court. Political pressure might be brought to bear upon state officials. But Pete was only one blind vendor. Ousting him to suit the postal service would be far easier than picking a fight with the feds.

That's where state officials miscalculated. Pete Howe is not one blind vendor standing alone. He has more than 50,000 blind people in the National Federation of the Blind to call upon as allies. So when state officials refused to challenge the postal service, we stepped in.

At least part of the problem we faced was created by the state agency itself, not the postal service. Believe it or not, state officials said that Pete Howe would not be entitled to move to the new post office with the postal employees he had served for twenty-four years. The postal employees would move and Pete would be left with virtually an empty building and only an occasional customer.

Faced with that prospect, U.S. District Court Judge Thomas J. Curran responded affirmatively to our petition and ordered the state and federal officials to allow Pete to move his vending business into the new post office facility where all of his customers were now working. But the order (called a preliminary injunction) would only last while Pete pursued a grievance through administrative channels to challenge the state agency's decision that he should not move. State officials said their rules required giving all blind vendors in Wisconsin an opportunity to bid on the new post office site. Pete could bid too, but he would not get any preference. That's where things stood when the injunction was granted last July 20. The road ahead for Pete would be very uncertain, indeed. At least in the meantime (until all of the grievance hearings were over) Pete would not lose his business, thanks to the efforts of the NFB and the resulting preliminary injunction.

On February 26, 1985 (quietly and without public fanfare), the administrator of the Wisconsin Division of Vocational Rehabilitation advised the postmaster in Green Bay that the state agency intended to apply for a permit allowing a blind vendor to operate a snack bar near the post office lobby and all of the vending machines in the employees' lunchroom and elsewhere throughout the building. It would be identical to the arrangements which had existed at the post office's former site. Simultaneously, the National Federation of the Blind was advised of the state agency's decision to continue Pete Howe as the sole blind vendor in the Green Bay main post office. He could operate both the snack bar and the vending machines, just as he had done for twenty-four years at the former site. If the postal service did not agree to this arrangement, state agency officials promised to take the matter to federal arbitration. Simply put, Pete Howe stays and the state will back him.

There could not be a more dramatic turn of events, nor a more favorable one. On June 18, 1984, when it finally became public knowledge that the postal service was moving rapidly to replace Pete Howe with a commercial vendor, the odds were overwhelmingly stacked against us. We would have to fight the postal service on our own without any help from the state. But that would be difficult since the appeal process for a blind vendor is to bring a complaint against the state, not directly against a federal agency. We would have to bank on making new law in the courts. We achieved the first victory on June 25 when we stopped the commercial bidders with a temporary restraining order. But that was only part of the challenge. On June 29, at a meeting with attorneys for the state in Madison, the capital, the odds that we could achieve ultimate success grew worse. The state attorneys advised us that the agency would not honor Pete Howe's right to move with his customers. So we dug in our heels and fought harder. The rest is history. We won. Pete Howe's grievance with the state is over. Now we shall see if the postal service wants a further battle or will settle the matter altogether. Perhaps postal officials now regret that they ever decided to pick on Pete Howe to begin with, and they certainly should.

This is quite a different outcome from what happened when the American Council of the Blind and others filed suit last fall against the Defense Department, challenging contracts with McDonald's and Burger King. That suit was lost as we reported in the March issue of the Monitor, and the future for all blind vendors is placed in jeopardy as a result. In Pete Howe's case, ACB members in Wisconsin knew of the problem with the postal service. One of their leaders (the chairman of the state blind vendors' committee) even called our attorney to try to get him to back away from Pete's defense. Our attorney told this ACB leader to call the National Office of the Federation. This was the last we ever heard of it, but we can assume that information about the case was shared with the ACB national office. It is a fact (and all vendors everywhere should know it) that the American Council of the Blind did not lift a finger or volunteer to help save Pete Howe's business. Indeed, their local leader tried to do the opposite.

The American Council of the Blind should hang its head in shame for its record on vendor issues. More and more vendors by increasing numbers are expressing the hope that the Council will keep its hands out of their affairs. We of the National Federation of the Blind are committed to better business opportunities for blind vendors, and we will use the Randolph-Sheppard Act judiciously and aggressively to protect and defend them. We will not, however, lash out in senseless anger at the state and federal agencies involved in this program. We will cooperate when we can and negotiate whenever possible. When we must we will fight, and when we do we will make every effort to win. That is our commitment to the Randolph-Sheppard Program, to the blind vendors of today, and to the blind of the future as well.